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Green v. Wing Enterprises, Inc.

United States District Court, D. Maryland

March 15, 2016

CHRISTOPHER GREEN, et al., Plaintiffs,
WING ENTERPRISES, INC., et al., Defendants.


Richard D. Bennett, United States District Judge

On December 9, 2015, this Court issued a Memorandum Opinion (ECF No. 80) and Order (ECF No. 81) granting in part and denying in part Defendants Wing Enterprises, Inc. and QVC, Inc.’s (“Defendants”) Motion to Exclude Evidence (ECF No. 45); denying Plaintiffs Christopher and Kathleen Green’s (“Plaintiffs” or the “Greens”) Daubert Motion to Preclude Testimony (ECF No. 46); and denying Defendants’ Motion for Partial Summary Judgment (ECF No. 53). In sum, this Court held that Plaintiffs’ expert, Dr. Irving Ojalvo, and Defendants’ expert, Thomas Bayer, are permitted to testify to the “Little Giant” ladder’s compliance or non-compliance with the safety standards of the American National Standards Institute (“ANSI”), as well as the factual predicate for their respective opinions. Dr. Ojalvo, however, is precluded from testifying to his proposed “safer alternative, ” as this Court determined that the proposal did not satisfy the requirements of Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Finally, this Court held that Plaintiffs raised a genuine issue of material fact as to their claim of strict liability, for they need not produce a “safer alternative” to sustain such a claim under Maryland law.

After this Court excluded the testimony of Dr. Ojalvo on a proposed “safer alternative, ” the parties filed the pending Responses Regarding Count II: Negligence (ECF Nos. 83, 84, & 85) to address the impact of this ruling on Plaintiff’s negligence claim. At issue is whether the “risk/utility” test, which applies to negligence claims under Maryland law, requires expert proof of a proposed “safer alternative.” For the reasons stated below, partial summary judgment in favor of Defendants is DENIED. Although Dr. Ojalvo may not testify to his proposed “safer alternative, ” he may testify to the existence of any safer alternatives available in the market. Maryland law does not prohibit this testimony under the risk/utility test. Plaintiffs have succeeded in raising a genuine issue of material fact such that judgment as a matter of law is inappropriate. Accordingly, the jury trial, scheduled for April 4-8, 2016, will proceed on Counts I, II, IV, V, and VI.


The background facts of this action were fully set forth in this Court’s Memorandum Opinion of December 9, 2015 (ECF No. 80). To summarize, this product liability action arises out of Mr. Green’s fall and subsequent injury while using the “Little Giant” ladder (the “Ladder”), a product manufactured by Wing Enterprises. On May 4, 2009, Mrs. Green saw the Ladder advertised on QVC. Mrs. Green allegedly decided to purchase the Ladder due to the “demonstrations and representations QVC made concerning the Ladder and its alleged quality and safety.” The Ladder arrived “new in the box” at the Greens’ residence in Maryland shortly thereafter. The Greens allege, and Defendants do not dispute, that the Ladder arrived in the same condition as when it left Defendant Wing’s control.

On August 27, 2011, Mr. Green used the Ladder to close a second-story window during a storm. He suddenly fell from the Ladder. As he fell, Mr. Green’s thumb became lodged at the point on the Ladder where the flared outer rail meets the straight inner rail, forcibly removing the thumb from his hand. After doctors determined that the thumb could not be reattached, they amputated Mr. Green’s toe and fashioned it into an approximation of a thumb.

Plaintiffs subsequently filed this “enhanced injury” product liability action, arguing that the Ladder manufactured by Wing Enterprises and sold by QVC was defective and unreasonably dangerous. As an “enhanced injury” suit, Plaintiffs do not allege that Mr. Green’s fall caused the injuries in question. Rather, the Greens contend that Mr. Green suffered a secondary injury-the amputation of his thumb-due to the unreasonably dangerous nature of the Ladder. Specifically, the Greens assert that the open “V” between the Ladder’s central structure and the diagonal support arms constitutes a design defect.


Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When considering a motion for summary judgment, a judge’s function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249.

In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). If both parties have filed motions for summary judgment, then this Court “must consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Bacon v. City of Richmond, 475 F.3d 633, 637-38 (4th Cir. 2007) (internal quotation marks omitted). Regardless, this Court “must not weigh evidence or make credibility determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)); see also Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015) (explaining that the trial court may not make credibility determinations at the summary judgment stage). Indeed, it is the function of the fact-finder to resolve factual disputes, including issues of witness credibility. See Tolan v. Cotton, __U.S.__, 134 S.Ct. 1861, 1866-68 (2014) (per curiam).


As a preliminary matter, the parties do not dispute that the “risk/utility” test applies to a claim for negligent design under Maryland law. See, e.g., Correspondence re: Daubert Mot., 2, ECF No. 77. Rather, they disagree as to whether the risk/utility test requires expert testimony on a proposed “safer alternative design.”[1] The risk/utility test consists of seven factors:

(1) The usefulness and desirability of the product-its utility to the user and to the public as a whole.
(2) The safety aspects of the product-the likelihood that it will cause injury, and the probable ...

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